Tuesday, June 8, 2010

What is Literal "Plain Meaning" and What is True

Former Justice David Souter speaks to the issue of "original intent" of the Constitution in his commencement speech at Harvard Law School.

In the midst of his speech is this startling passage on the Brown vs. Board of Education ruling of 1954:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.

Again, a rhetorical question. Did the judges of 1954 cross some limit of legitimacy into law making by stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before? Again, you know my answer. So much for the assumption that facts just lie there waiting for an objective judge to view them.

Let me, like the lawyer that I am, sum up the case I’ve tried to present this afternoon. The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.

The fair reading model misses that, but it has even more to answer for. Remember that the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the creatures of our aspirations: to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between one high value and another reflects our confidence that a way may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution devalues our aspirations, and attacks that our confidence, and diminishes us. It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made.

So, it is tempting to dismiss the critical rhetoric of lawmaking and activism as simply a rejection of too many of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

Some passages here that leap out at me:

"The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page."

"... that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny."

To me, this is the old fight between the desire to impose an abstract clarity and simplicity upon the mess of reality, versus acceptance of life in all its mystery, paradox, and complexity, and that to cut through this Gordian Knot is to cut through living tissue.What Justice Souter says about interpreting the Constitution literally goes for just about any other kind of text from Scripture to literature. We cannot help but interpret as we read. We cannot step out of our own skins to look upon the world with a divine detachment, nor should we.

Words of Wisdom

Here being built by the Sidonian queenWas a great temple planned in Juno¹s honor,Rich in offerings and the godhead there,Steps led up to a sill of bronze, with brazenLintel, and bronze doors on groaning pins.Here in this grove new things that met his eyesCalmed Aeneas’ fear for the first time,Here for the first time he took heart to hopeFor safety, and to trust his destiny moreEven in affliction. It was while he walkedFrom one to another wall of the great templeAnd waited for the queen, staring amazedAt Carthaginian promise, at the handiworkOf artificers and the toil they spent upon it;He found before his eyes the Trojan battlesIn the Old War now known throughout the world--The great Atridae, Priam, and Achilles,Fierce in his rage at both sidesHere AeneasHalted and tears came, “What spot on the earth,”He said, “What region of the earth, Achates,Is not full of the story of our sorrow?Look, here is Priam. Even so far awayGreat Valor has due honor; they weep hereFor how the world goes, and our life that passesTouches their hearts. This fameInsures some kind of refuge.”--Virgil, from the Aeneid, translated by Robert Fitzgerald

Great masters who have shown mankindAn order it has yet to find,What if all pedants say of youAs personalities be true?All the more honor to you thenIf, weaker than some other men,You had the courage that survivesSoiled, shabby, egotistic lives,If poverty or ugliness,Ill-health or social unsuccessHunted you out of life to playAt living in another way;Yet the live quarry all the sameWere changed to huntsmen in the game,And the wild furies of the past,Tracked to their origins at last,Trapped in a medium’s artifice,To charity, delight, increase.Now large magnificent and calm,Your changeless presences disarmThe sullen generations, stillThe fright and fidget of the will,And to the growing and the weakYour final transformations speak,Saying to dreaming “I am deed.”To striving “Courage. I succeed”To mourning “I remain, Forgive.”And to becoming “I am. Live.”--WH Auden, from New Year's Letter, 1939

Art still has truth, take refuge there.--Matthew Arnold from “Memorial Verses”

We have art in order that we might not perish from truth.--Friedrich Nietzche

Those masterful images because completeGrew in pure mind, but out of what began?A mound of refuse or the sweepings of a street,Old kettles, old bottles, and a broken can,Old iron, old bones, old rags, that raving slutWho keeps the till. Now that my ladder’s goneI must lie down where all ladders start,In the foul rag-and-bone shop of the heart.--W.B. Yeats

The camera cannot compete with a brush and canvas, as long as it can’t be used in heaven and hell.--Edvard Munch

The true mystery of the world is the visible, not the invisible.--Oscar Wilde

Invention, it must be admitted, does not consist in creating out of the void, but out of chaos; the materials must in the first place be afforded: it can give form to dark, shapeless substances, but cannot bring into being the substance itself.--Mary Shelly, Introduction to Frankenstein

The artist is a dreamer who consents to dream of the real world.

--George Santayana

To see is to understand.--Leonardo da Vinci

The attitude that nature is chaotic and that the artist puts order into it is a very absurd point of view, I think. All that we can hope for is to put some order into ourselves.--Willem de Kooning

Now do you not see that the eye embraces the beauty of the whole world? It is the lord of astronomy and the maker of cosmography; it counsels and corrects all the arts of humanity; it moves men to the different parts of the world; it is the prince of mathematics, its sciences are certain; it has measured the heights and sizes of the stars, it has found the elements in their locations... has generated architecture, perspective, and the divine art of painting. Oh most excellent thing above all others created, what peoples, what tongues shall be those that can fully describe your true operation? This is the window of the human body, through which it mirrors its way and brings to fruition the beauty of the world, by which the soul is content to stay in its human prison.--Leonardo da Vinci

The artist begins to communicate before he is understood. --TS Eliot

But what, after all, was humanism if not a love of humankind, and by token also of political activity, rebellion against all that tended to defile or degrade our conception of humanity? He had been accused of exaggerating the importance of form. But he who cherished beauty of form did so because it enhanced human dignity--Thomas Mann from The Magic Mountain

...what would your good be doing if there were no evil, and what would the earth look like if shadows disappeared from it? After all, shadows are cast by objects and people. There is the shadow of my sword. But there are also shadows of trees and living creatures. Would you like to denude the earth of all the trees and all the living beings in order to satisfy your fantasy of rejoicing in the naked light?--Mikhail Bulgakov from The Master and Margarita

The Piazza Signoria is too stony to be brilliant. It has no grass, no flowers, no frescoes, no glittering walls of marble or comforting patches of ruddy brick. By an odd chance -- unless we believe in a presiding genius of place -- the statues that relieve its severity suggest, not the innocence of childhood nor the glorious bewilderment of youth, but the conscious achievements of maturity. Perseus and Judith, Hercules and Thusnelda, they have done or suffered something, and, though they are immortal, immortality has come to them after experience, not before. Here, not only in the solitude of Nature, might a hero meet a goddess, or a heroine a god.--E.M. Forster, from A Room With A View

To be an Error and to be Cast Out is Part of God's Design.--William Blake

Truth rests with God alone, and a little bit with me.--Yiddish proverb

Loyalty to the country always. Loyalty to the government only when it deserves it.--Mark Twain

Man is the only animal that blushes, or needs to.--Mark Twain

Humanity is a parade of fools, and not only am I in that parade, I'm carrying a banner.

--Mark Twain

In a world full of caterpillars, it takes balls to be a butterfly.-Anonymous Tranny.

Peace is more than the absence of war, it is the presence of justice.--Martin Luther King Jr.

An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself.--Martin Luther King Jr.

Men who look upon themselves born to reign, and others to obey, soon grow insolent; selected from the rest of mankind their minds are early poisoned by importance; and the world they act in differs so materially from the world at large, that they have but little opportunity of knowing its true interests, and when they succeed to the government are frequently the most ignorant and unfit of any throughout the dominions.-- Thomas Paine

Give to every other human being every right that you claim for yourself - that is my doctrine.” ― Thomas Paine, The Age of Reason.

Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing God's service when it is violating all His laws. --John Adams, letter to Jefferson, 1816

Peace is not the product of terror or fear. Peace is not the silence of cemeteries. Peace is not the silent result of violent repression. Peace is the generous, tranquil contribution of all to the good of all. Peace is dynamism. Peace is generosity. It is right and it is a duty.-- Oscar Romero, January 7, 1978

Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if Labor had not first existed. Labor is superior to capital, and deserves much the higher consideration.~~Abraham Lincoln

Live as though you will die tomorrow. Learn as though you will live forever.--Mohandas Gandhi

Never for the sake of peace and quiet deny your own experience or convictions.--Dag Hammarskjöld

If, as some say, God spanked the townFor being over frisky,Why did He burn the Churches downAnd save Hotaling's Whiskey?--Charles K. Field after the 1906 San Francisco Earthquake

There has never been a kingdom so given to so many civil wars as that of Christ.--Montesquieu

When they try to become angels, men become beasts.

--Montaigne

Kings and philosophers shit, and so do ladies.

--Montaigne

Out of the crooked timber of humanity no straight thing was ever made.

--Immanuel Kant

Certainty generally is illusion, and repose is not the destiny of man,--Oliver Wendell Holmes

The God of Love will never withdraw our right to grief and infamy--WH Auden

Politics is the art of the possible.--Otto Von Bismarck

... the politics of the holy is the art of the impossible. It makes long-run compromise untenable.--Avishai Margalit

War in the end is always about betrayal, betrayal of the young by the old, of soldiers by politicians, and of idealists by cynics.

--Chris Hedges

The best live by legends. The average live by ideology. And the worst live by conspiracy theories.

--Hannah Arendt

Laws, like the spider’s webs, catch the small flies and let the large ones go free.-Balzac

If you had enough courage, you wouldn't need a reputation.--Rhett Butler to Scarlett O'Hara

Be kind, for everyone you meet is fighting a great battle.

--attributed to Philo of Alexandria

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.--Anatole France

I am aware that there are many who wince at a distinction between property and persons--who hold both sacrosanct. Myviews are not so rigid. A life is sacred. Property is intended to serve life, and no matter how much we surround it with rights andrespect, it has no personal being. It is part of the earth man walks on; it is not man.

Martin Luther King, Jr., The Trumpet of Conscience, 1967.

While there is a lower class, I am in it, and while there is a criminal element I am of it, and while there is a soul in prison, I am not free.--Eugene V. Debs, 1918

祇園精舎の鐘の声、諸行無常の響きあり。娑羅双樹の花の色、盛者必衰の理をあらわす。おごれる人も久しからず、唯春の夜の夢のごとし。たけき者も遂にはほろびぬ、偏に風の前の塵に同じ。The sound of the Gion Shōja bells echoes the impermanence of all things; the color of the sāla flowers reveals the truth that the prosperous must decline. The proud do not endure, they are like a dream on a spring night; the mighty fall at last, they are as dust before the wind.--opening of the Heike Monogatari, 13th century Japan

The knowledge of God is very far from the love of Him.--Pascal

"I believe in the sun,even when it is not shining.I believe in love,even when I don't feel it.I believe in God,even when there is silence." --Words scratched on the walls of a cellar in Cologne, Germany by a Jew hiding from Nazi persecution.

There's a Christ for a whore and a Christ for a punk,

There's a Christ for a pickpocket and a drunk,

There's a Christ for every sinner, but there's one thing there ain't,

There ain't no Christ for any cut-price saint.

--James Fenton, from "Cutthroat Christ"

God made man in His own image, and man, being a gentleman, returned the compliment (Mark Twain)

Men never do evil so willingly and so happily as when they do it for the sake of conscience.

--Pascal

Human salvation lies in the hands of the creatively maladjusted.

Martin Luther King, Jr., Strength to Love, 1963.

Dr. Rieux resolved to compile this chronicle, so that he should not be one of those who hold their peace but should bear witness in favor of those plague-stricken people; so that some memorial of the injustice and outrage done to them might endure; and to state quite simply what we learn in time of pestilence: that there are more things to admire in men than to despise.Nonetheless, he knew that the tale he had to tell could not be of one final victory. It could only record of what had had to be done. and assuredly would have to be done again in the never ending fight against terror and its relentless onslaughts, despite their personal afflictions, by all who, while unable to be saints but refusing to bow down to pestilences, strive to their utmost to be healers.And indeed, as he listened to the cries of joy rising from the town, Rieux remembered that such joy is always imperiled. He knew what those jubilant crowds did not know but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture and linen chests; that it bides its time in bedrooms, cellars, trunks, and bookshelves; and perhaps the day would come when, for the bane and enlightening of men, it would rouse up its rats again and send them forth to die in a happy city.--Albert Camus, conclusion of The Plague

There are people in the world so hungry, that God cannot appear to them except in the form of bread.--Mohandas Gandhi

Faith is never identical with piety.--Karl Barth

"Our idea of God tells us more about ourselves than about Him."~ Thomas Merton

The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state, and never its tool. If the church does not recapture its prophetic zeal, it will become an irrelevant social club without moral or spiritual authority. If the church does not participate actively in the struggle for peace and for economic and racial justice, it will forfeit the loyalty of millions and cause men everywhere to say that it has atrophied its will. But if the church will free itself from the shackles of a deadening status quo, and, recovering its great historic mission, will speak and act fearlessly and insistently in terms of justice and peace, it will enkindle the imagination of mankind and fire the souls of men, imbuing them with a glowing and ardent love for truth, justice, and peace. Men far and near will know the church as a great fellowship of love that provides light and bread for lonely travellers at midnight.--Martin Luther King Jr.

Oh God, If I worship Thee in fear of hell, burn me in hell; and if I worship Thee in hope of Paradise, exclude me from Paradise; but if I worship Thee for Thine own sake, withhold not Thine everlasting beauty!--Rabiah al Basri

Live this life and do what ever is done in a spirit of thanksgiving. Abandon attempts to achieve security, they are futile. Give up the search for wealth, it is demeaning. Quit the search for salvation, it is selfish. And come to comfortable rest in the certainty that those who participate in this life with an attitude of thanksgiving will receive its full promise.

-- John McQuiston II

IF I were but mere dust and ashes I might speak unto the Lord, for the Lord’s hand made me of this dust, and the Lord’s hand shall re-collect these ashes; the Lord’s hand was the wheel upon which this vessel of clay was framed, and the Lord’s hand is the urn in which these ashes shall be preserved. I am the dust and the ashes of the temple of the Holy Ghost, and what marble is so precious? But I am more than dust and ashes: I am my best part, I am my soul.--John Donne

All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated. God employs several translators; some pieces are translated by age, some by sickness, some by war, some by justice; but God's hand is in every translation, and His hand shall bind up all our scattered leaves again for that library where every book shall lie open to another. ― John Donne

Christ has no body now but yoursNo hands, no feet on earth but yoursYours are the eyes through which He lookscompassion on this worldChrist has no body now on earth but yours.--Teresa of Avila

God is the Lover, the Beloved, and the Love between them.--Saint Augustine

Again I saw that under the sun, the race is not to the swift, nor the battle to the strong, nor bread to the wise, nor riches to the intelligent, nor favor to the men of skill; but time and chance happen to them all.-Ecclesiates 9:11-12

What shall I bring when I approach the Lord? How shall I stoop before God on high? Am I to approach him with whole offerings or yearling calves? Will the Lord accept thousands of rams or ten thousand rivers of oil? Shall I offer my eldest son for my own wrongdoing, my children for my own sin?God has told you what is good, and what is it that the Lord asks of you?Only to do justice, and to love kindness, and to walk humbly with your God?-Micah 6:6-8

Divine folly is wiser than the wisdom of man, and divine weakness stronger than man's strength. My brothers, think what sort of people you are, whom God has called. Few of you are men of wisdom, by any human standard; few are powerful or highly born. Yet, to shame the wise, God has chosen what the world counts folly, and to shame the strong, God has chosen what the world counts weakness. he has chosen things low and contemptible, mere nothings, to overthrow the existing order. And so there is no place for human pride in the presence of God. You are in Christ Jesus by God's own act, for God has made him our wisdom; he is our righteousness; in him we are consecrated and set free.-1 Corinthians: 25-30

The Spirit of the Lord is upon me because he has anointed me; he has sent me to announce good news to the poor, to proclaim release for prisoners and recovery of sight for the blind; to let the broken victims go free, to proclaim the year of the Lord's favor.--Luke 4:18-19

One of the scribes came near and heard them disputing with one another, and seeing that he answered them well, he asked him, ‘Which commandment is the first of all?’ 29Jesus answered, ‘The first is, “Hear, O Israel: the Lord our God, the Lord is one; 30you shall love the Lord your God with all your heart, and with all your soul, and with all your mind, and with all your strength.” 31The second is this, “You shall love your neighbour as yourself.” There is no other commandment greater than these.’--Mark 12: 28-32

And though worms destroy this body, yet in my flesh shall I see God.

--Job 19:26

Because I live, so shall you live also--John 14:19-20

A Prayer Attributed to Saint Francis

Lord, make us instruments of your peace.Where there ishatred, let us sow love; where there is injury, pardon;wherethere is discord, union; where there is doubt, faith;wherethere is despair, hope; where there is darkness, light;wherethere is sadness, joy.Grant that we may not so much seek tobe consoled as to console;to be understood as to understand;to be loved as to love.For it is in giving that we receive;it isin pardoning that we are pardoned; and it is in dying that weare born to eternal life.Amen.

Prayer of Thomas Merton

My Lord God, I have no idea where I am going. I do not see the road ahead of me. I cannot know for certain where it will end. Nor do I really know myself and the fact that I think I am following your will does not mean that I am actually doing so. But I believe that the desire to please you does in fact please you. And I hope I have that desire in all that I am doing. I hope that I will never do anything apart from that desire. And I know that if I do this you will lead me by the right road, though I may know nothing about it. Therefore I will trust you always though I may seem to be lost and in the shadow of death. I will not fear, for you are ever with me, and you will never leave me to face my perils alone.

Metta Karuna Prayer

Oneness of Life and Light,Entrusting in your Great Compassion,May you shed the foolishness in myself,Transforming me into a conduit of Love.May I be a medicine for the sick and weary,Nursing their afflictions until they are cured;May I become food and drink,

During time of famine,May I protect the helpless and the poor,May I be a lamp,

For those who need your Light,May I be a bed for those who need rest,and guide all seekers to the Other Shore.May all find happiness through my actions,and let no one suffer because of me.Whether they love or hate me,Whether they hurt or wrong me,May they all realize true entrusting,Through Other Power,

The Prayer of Eleanor Roosevelt

Our Father, who has set a restlessness in our hearts and made us all seekers after that which we can never fully find, forbid us to be satisfied with what we make of life. Draw us from base content and set our eyes on far-off goals. Keep us at tasks too hard for us that we may be driven to thee for strength. Deliver us from fretfulness and self-pitying; make us sure of the good we cannot see and of the hidden good in the world. Open our eyes to simple beauty all around us and our hearts to the loveliness men hide from us because we do not try to understand them. Save us from ourselves and show us a vision of a world made new.